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lant's knowledge of the business affairs of ing track. At one end of this tract of land, the concern and respondents' want of knowl. which is 200 by about 1,900 feet, there is a edge thereof.

county road. At the other end is a fence

with a cattle guard. The respondent was (89 Wash. 522)

the owner of three colts, which wandered BENN v. CHICAGO, M. & ST. P. RY. CO.

from his field and were killed about 3 o'clock (No. 12992.)

in the morning of November 1, 1913, by a (Supreme Court of Washington. Feb. 7, 1916.)

freight train belonging to the appellant. 1. RAILROADS E 446-ACTIONS FOR VALUE OF The only question in this case is whether STOCK-QUESTIONS OF LAW OR Fact. In an action for the value of colts struck

the engineer did all that he could do to stop by a freight train consisting of 16 cars, fairly

his train before striking the animals. The light, and going at from 28 to 30 miles an hour, station ground is approached on a slight where the evidence showed a reasonable effort anrve. The colts were observed first by the or an effort not shown to be unreasonable to stop the train, the court erred in holding as a

| fireman. At that time they were about 200 matter of law that the train could have been feet in front of the locomotive. Because of stopped within 600 or 650 feet.

the curve they were not seen by the engineer Ed. Note.-For other cases, see Railroads, until the engine had straightened out on the Cent. Dig. 88 1627-1641; Dec. Dig. Om 446.)

track. When observed by the fireman he im2. RAILROADS ww443–ACTIONS FOR VALUE

mediately called to the engineer, who shut OF STOCK-QUESTIONS OF LAW OR FACT. In an action for the value of colts struck by

off the steam and set the air. The testimony a train, evidence held insufficient to support trial of the engineer and fireman would indicate judge's finding that the trainmen expected the that the colts ran about 400 feet before they horses to run off the track.

were overtaken. The train was a freight [Ed. Note.--For other cases, see Railroads, Cent. Dig. 88 1608-1620; Dec. Dig. Om443.)

train consisting of 16 cars, fairly light, and 3. RAILROADS 425–LIABILITY FOR KILL

going at from 28 to 30 miles an hour. ING STOCK-STATUTORY PROVISIONS.

[1] The court below held, as a matter of Rem. & Bal. Code, $ 8730, provides that law, that the engineer should have stopped every railroad shall, outside of any corporate the train within 600 or 650 feet, and that it city or town, and outside the limits of any side

he had done so, the stock would not have track or switch, construct along the right of way a substantial fence, and at every road cross been injured. A judgment for the value of ing a safe crossing must be maintained, and the colts was entered in favor of the respondon each side of such crossing and at each end of

ent. There was no testimony tending to such side track or switch outside of any incorporated city or town a sufficient cattle guard.

show within what distance a train, running Held that, as a company was not required to at the rate mentioned, eould have been stopfence a depot and side track or switch outside ped so as to avoid the injury. While it is an incorporated city or town, a cattle guard at each end of such side track would have served no

possible that a court would be warranted in purpose, and its absence was not the proximate holding that a train could be stopped within cause of an injury to live stock which went up a distance so great that the minds of reasonon the tracks at that point and were killed

able men would not differ upon the question, by a train. [Ed. Note.-For other cases, see Railroads,

we cannot so hold in this case. Where a Cent. Dig. 8$ 1527-1533; Dec. Dig. 425.)

fact depends upon the application of some 4. RAILROADS 441--ACTIONS FOR VALUE OF

scientific principle or upon the use, or the STOCK-QUESTIONS OF LAW OR FACT. consequences of the use, of machinery which

A railroad company's failure to comply requires skillful operation or manipulation, with the statute as to constructing and main

courts rarely ever indulge a presumption of taining fences and cattle guards merely requires the company when sued for injuries to live

| law, or compel a conclusion of fact in the abstock to meet a prima facie case or presumption sence of positive testimony to sustain it. of negligence.

The only testimony in the case going to this (Ed. Note.-For other cases, see Railroads, Cent. Dig. 88 1575-1595; Dec. Dig. ww441.)

point is that of the engineer. He said, in

reply to the question: Department 1. Appeal from Superior

"Q. In what distance can you stop with that Court, Chehalis County; Mason Irwin, size train, running at that rate of speed? A. Judge.

Freight trains-some trains would stop in 500

feet, while 1,500 feet it would take to stop othAction by Dave Benn against the Chicago,

80, ers. The braking power on freight trains is Mil aukee & St. Paul Railway Company. | very variable and hard to state; but on a rule Judgment for plaintiff, and defendant ap- 1,000 feet.” peals. Reversed and remanded, with direc

But, granting that the stopping of a freight tions.

train consisting of a locomotive and 16 cars, George W. Korte, of Seattle, for appellant. going at about 30 miles an hour, is a matter E. S. Avey, of Elma, for respondent.

of which the courts and, as is contended by

respondent, juries, will take notice and find CHADWICK, J. Appellant maintains al of their own knowledge, or, in other words, flag station known as Balch in Chehalis coun-treat as a matter of legal conclusion or inty. The place is not incorporated, and is ference, we have found at least one case no more than a station house and a loading where it appears that a train consisting of ground, which accommodates a side or pass- a locomotive and two passenger coaches, go

ing at 6 or 8 miles an hour, could be stop-, A. No; but I have helped pick up fellows that ped in from 150 to 200 feet; at 35 miles was. Q. I have heard of bulls butting engines an hour in from 700 to 800 feet. See Ander

off the track. You feel quite sure that you did

everything that you could do to avert that accison v. Chicago, St. P., M. & 0. Ry, Co., 87 dent? A. I did.” Wis. 195, 58 N. W. 79, 23 L. R. A. 203.

[3] Respondent suggests in his brief that, Counsel relies on Timm v. Northern Pacific

ac notwithstanding the grounds upon which Ry, Co., 3 Wash. T. 299, 13 Pac. 415. Here

the case was made to rest, appellant is liable the train consisted of 60 or 70 cars loaded

under the statute (Rem. & Bal. Code, 88 8730, with coal:

8731), in that Balch station is not an incor"What was the description of the train other

porated city or town, and it was therefore wise, or of the whistle blast, or of the railway grade, or of the engine, or how far from the

the duty of the company to fence its tracks. cattle the train was when they could have been The statute (section 8730) reads: first sighted from it, or within what space the “Every person, company or corporation havtrain could have been stopped, or how the speed ing the control or management of any railroad of the train after sighting the cattle, or as it shall, within six months after the passage of neared them, was as compared with its speed this act, outside of any corporate city or town, before, does not transpire." .

and outside the limits of any sidetrack or Although negligence is not to be presum | switch, cause to be constructed and maintained ed and it was not, by any means, clear that

in good repair on each side of said railroad,

along the line of said right of way of such perthe engineer was in fault, the court, after a

son, company or corporation operating the same, consideration of the evidence, assumed that a substantial fence, and at every point where the train might have been stopped within the any roadway or other public highway shall cross

said railroad, a safe and sufficient crossing must space of 270 yards, which is 810 feet. It

be built and maintained, and on each side of is proper to draw conclusions from establish- such crossing and at each end of such sidetrack ed or admitted facts, and possibly, in the ab- or switch, outside of any incorporated city or sence of all testimony, from the physical town, a sufficient cattle-guard: Provided, that

any person holding land on both sides of said facts, but courts cannot supply the want of right of way shall have the right to put in gates facts by resort to assumptions or hypothesis. for his own use at such places as may be conIn any event, the court did not assume to | venient." decide the question by resort to judicial We have italicized the part relied on. We knowledge, and the case can have no bear- confess our inability to understand the meaning where, as in this case, a reasonable ef- ing of the italicized words. They cannot fort, or rather an effort that is not shown mean that a cattle guard is required at each to be unreasonable, was made to stop the end of every switch outside of an incorporattrain.

ed city or town, for "such" switch is the [2] After finding that a train could be switch first mentioned in the act, and it is by stopped within a distance of 650 feet, the express words exempted from the fence featrial judge says:

tures of the law. It follows if a company is “ * * * The employés of defendant company not required to fence its depot or side tracks in charge of the engine evidently expected the

or switch, that a cattle guard at the end of horses would run off at the side of the track and did not exercise the proper caution and

each switch would serve no purpose. Indeed were negligent in not stopping the train within we cannot imagine a condition calling for the that distance."

application of the words relied on. There We found nothing in the testimony, and being no law compelling the company to we have read it all, to sustain the finding fence its side tracks, the conclusion follows that the employés of appellant evidently ex- that the want of cattle guards was not the pected the horses would run off on the side proximate cause of the injury. of the track. On the contrary, the engineer [4] The statute is unavailing to respondtestifies that he endeavored to stop, and thatent for another reason. An omission to comif he had had another 100 or 150 feet to go ply with its terms does no more than to put he would not have come in contact with the the company under a rule of evidence; that animals at all, that he could think of noth- is, to meet a prima facie case, or a presumping he had left undone, and that he was tion of negligence in the event that stock mindful of the danger to himself and his is killed at a point where the track is not fireman in striking the stock.

fenced. Granting that respondent made out The only thing we find in the record which a prima facie case, we think that appellant could have misled the court is the follow overcame it and should prevail. ing:

"Q. Isn't it a fact that, although you don't dismiss. aim to hit the stock, sometimes you like to give them a chase down the track? A. Not at that epeed: because we might get the benefit of the MORRIS, C. J., and MOUNT. FULLERfun. Q. Have you ever been ditched that way? | TON, and ELLIS, JJ., concur,

(89 Wash. 579)

i only to those engaged in the business of KETLER V. MURREY et al. (No. 13069.) selling intoxicating liquors. We note this (Supreme Court of Washington. Feb. 9, 1916.) case because appellants contend that all the INTOXICATING LIQUORS 327-SALE-STAT- cases cited by respondent are to be distinUTES.

guished as covering sales made by public Rem. & Bal. Code, &$ 2962, 6268, declarins | officers in the performance of their duty. that any person who shall sell intoxicating liq

If appellants' reasoning be good, it would uors without a license shall be deemed guilty of a misdemeanor, and that nothing shall al- not be possible so to distinguish the cases; low any person, firm, or corporation to sell or for the statute uses the words "any person," otherwise dispose of intoxicants without first

and a sheriff or other officer would fall with. obtaining license, does not apply to the sale of a quantity of intoxicants with a hotel, restau

in the letter of the law. If it were admitted rant, and saloon, where the sellers were going that the sale by a sheriff could be so disout of business, and delivery cannot be avoided tinguished, it would not follow that a sale on the ground that the sellers had no license to sell intoxicants in quantity.

by an assignee of a debtor or an adminis(For other cases, see Intoxicating Liquors,

trator was a sale under the compulsory proCent. Dig. 88 467-472; Dec. Dig. 327.] cess of a court, and yet it is held that a sale Department 1. Appeal from Superior

by either of these agents does not fall with. Court, Pierce County; W. 0. Chapman,

in the meaning and intent of the law. Judge.

In Williams v. Troop, 17 Wis. 463, the Action by H. L. Ketler against M. E. Mur- court said: rey and F. W. Kirsch, partners as Murrey

"He [an administrator), is a person whose & Kirsch. From a judgment for plaintiff, de

plain legal duty it is to sell property, collect

and pay the debts, and settle up the estate fendants appeal. Affirmed.

committed to his charge. In performing this J. W. A. Nichols, of Tacoma, for appel

duty and disposing of the spirituous liquors

belonging to the estate, it is no more necessary lants. J. W. Selden and Gordon & Easter- for him to obtain a license than it would be for day, all of Tacoma, for respondent

a sheriff to obtain one before he could sell lige

uors taken upon an execution." CHADWICK, J. Respondent purchased al And the like rule was applied to an as hotel, restaurant, and saloon from the de- signee in Gignoux v. Bilbruck, 63 N. H. 22. fendants. They refused to make delivery In Forwood v. State, 49 Md. 531, in disupon the ground that the stock of goods cussing the law of the case it is said: consisted, in part, of two kegs of beer, a If the vendor "had disposed of them [stock of barrel of whisky containing some seven or liquors] at private sale by wholesale, and at eight gallons, and several bottles of liquors

one time in good faith, solely for the purpose

of closing his business, and not in the continued and wines. Appellants rely upon the stat prosecution of his business, this would not ute (Rem. & Bal. Code, $8 2962, 6268):

have been, in our judgment, any infraction of "Any person who shall sell or dispose of any the liçense laws." spirituous, malt, or other intoxicating liquors In Hagerty v. Tuxbury, 181 Mass. 126, 63 without having first obtained a license from the proper authorities shall be deemed guilty of a N. E. 333, the holding 1s epitomized in the misdemeanor, and upon conviction thereof shall syllabus: be fined in any sum not exceeding one thousand | “One owning an interest in a liquor saloon dollars, or imprisoned in the county jail not to and its stock in trade, but having no license to exceed six months, or by both fine and imprison sell intoxicating liquors, lawfully may sell to ment, for each offense."

his partner his interest in the saloon and the "Nothing in this act shall be held or construed

intoxicating liquors it contains." to allow any person, firm, or corporation to barter, sell, or otherwise dispose of any spirituous, We find the judgment of the lower court malt, fermented, or other intoxicating liquors | well founded in reason and sustained by without having first obtained a license therefor,

ample authority. as required by the provisions of this chapter, except as provided in section 6275, infra.”

Affirmed. The court below held that a license to sell

MORRIS, C. J., and MOUNT, ELLIS, and in quantity was not necessary where the sell- | FULLERTON, JJ., concur. er was closing out his business as a dealer in intoxicating liquor. The holding was correct. Statutes such as our own are di

(89 Wash. 553) rected to the regulation of traffic in intoxi VAN HORN v. CHAMBERS et al. cating liquor, and not to the transfer of prop

(No. 12712.) erty in it. Black on Intoxicating Liquors, p. 139.

(Supreme Court of Washington. Feb. 9, 1916.) In Wildermuth v. Cole. 77. Mich. 483. 43 1. VENDOR AND PURCHASER 33 - FALSE N. W. 889, under a statute as broad as our

REPRESENTATIONS-RELIANCE.

Relative to right to rescind for fraud, the own, the Supreme Court of Michigan held purchaser of land several hundred miles dis. that a sheriff holding intoxicating liquors un tant in another state, known never to have seen der a writ of attachment did not need a li

it, and to be relying on the vendors' representa

tions in regard to it, had a right to so rely. cense to sell on execution sale; that his act

[Ed. Note.-For other cases, see Vendor and did not fall within either the letter or the purchaser. Cent. Dig. $$ 38, 40-43, 66: Die spirit of the statute, which was directed | Dig. 33.]

2. VENDOR AND PURCTASER 33 – FALSE! On the question whether the appellant was REPRESENTATIONS-RELIANCE-WARNING,

actually defrauded the evidence leaves no Relative to right to rescind, a purchaser had no less right to rely on the vendors' repre

room for doubt. For the very considerable sentations as to the land several hundred miles values he gave in exchange he actually redistant, because warned by an attorney, with ceived only the value of the cash payment whom he consulted on a minor matter, not to

made to him by Chambers. The land in the make the trade without first examining the land. (Ed. Note. For other cases, see Vendor and

state of Montana was first sold on execution Purchaser, Cent. Dig. $$ 38, 40-43, 66; Dec. shortly after the exchange was made, under Dig. Ow33.]

a judgment obtained against Chambers upDepartment 2. Appeal from Superior

on an obligation he had left unpaid to a Court, Walla Walla County: Edward 0. resident of that state, and subsequently upon Mills, Judge.

the foreclosure of a mortgage outstanding Action by Francis M. Van Horn against against the property at the time of the exClarence Chambers and others. Judgment for change. These sales exhausted the property, defendants, and plaintiff appeals. Reversed

leaving no surplus to the holder of the fee. and remanded, with directions.

Nor does the evidence leave any doubt that

Chambers misrepresented the character and Reynolds & Bond, of Walla Walla, for ap

value of the lands. He represented them pellant. Sharpstein & Sharpstein, of Walla

as worth $125 per acre, and that a loan Walla, and Merritt, Oswald & Merritt and 0.

could be readily obtained upon them for C. Lantry, all of Spokane, for respondents.

$2,500; that it was high-grade agricultural FULLERTON, J. On May 8, 1913, the ap

land, with a fine soil, capable of producing

any kind of grain, and was particularly pellant, Van Horn, was the owner of a cer

adapted to the growth of vegetables, the purtain tract of land situated in Walla Walla

poses for which the appellant desired it. county, in this state, containing some 200

The sequel proved that all of these repreacres. Theretofore he had contracted to sell the land to one C. D. Weaver, under

sentations were untrue. No witness valued

the land at anywhere near the value put some form of deferred payment plan, on which there was at the date named a balance

upon it by Chambers, and the appellant tes

tified that the best offer for a loan upon it unpaid of $10,500. Van Horn had listed his interests in the property for sale with a real

was $5 per acre. It is practically undisputed estate broker residing in Spokane.

that the land is worthless for growing cereals

This broker introduced him to the respondent

or vegetables or for any kind of agriculture, Clarence Chambers, who proposed to ex

and that it had never been used for such change for his interests a certain 80-acre

purposes. It was shown also that Chambers tract of land situated near Great Falls, in

misrepresented the amounts of the mortgage the state of Montana. After some negotia

upon the property, and that he said nothing tions between the parties a written agree

concerning liens or the possibilities of liens ment was entered into between them by which Irom unsecured indebtedness. Van Horn agreed to convey to Chambers the

[1] The principal question is whether the Walla Walla county lands and assign to him

appellant acted in making the exchange with his interest in the contract, in consideration

that degree of prudence required of him unof a conveyance by Chambers of the lands in

der the circumstances. The respondent's the state of Montana, the payment of $530

counsel argue with much earnestness that in cash, and the assumption by Chambers oť

bř Chambers of he did not, citing and relying upon the case an obligation of $180 due from Van Horn

of Washington Central Improvement Co. v. to one A. J. Bolter; the exchange to be con

Newlands, 11 Wash, 212, 39 Pac. 366. But summated as soon as abstracts of title to the that case was rested chiefly upon the ground lands could be furnished and deeds executed. that misrepresentations alleged to have been Deeds were executed and delivered on May made related to matters easily ascertainable 10, 1913, two days after the agreement was by the person claiming to have been deceived, executed, but prior to the time the abstracts that they were representations the truth or were furnished. The deed executed by the falsity of which the injured party could appellant ran to the respondent W. H. Hone- have ascertained by only ordinary diligence, fenger, instead of the respondent Chambers, and that his failure to exercise such diligence who furnished the consideration for the ex- was negligence on his part. In the course of change. Shortly after the execution of the the opinion it was recognized that a different deeds the appellant visited the property in rule obtains where the opportunity to inMontana, and, finding it, as he contended, vestigate is not at hand, such as where the not in accordance with the representations property is at a distance, or where for any made by Chambers, returned and sought a reason the truth or falsity of the representavoluntary rescission of the contract. This tion is not readily ascertainable. This disbeing denied him, he instituted the present tinction is recognized also in our later cases, action to enforce a rescission. The trial notably in Wooddy v. Benton Water Co., 54 court denied him relief, and from the ad-Wash. 124, 102 Pac. 1054, 132 Am. St. Rep. verse judgment, he appeals.

| 1102; Stewart v. Larkin, 74 Wash. 681, 134

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Pac. 186; Becker v. Clark, 83 Wash. 37, 145, 2. RAILROADS Omw 358-DOUBLE TRACK-RUNPac. 65; and Christensen v. Koch. 85 Wash. | NING AGAINST TRAFFIC-LICENSEES. 472, 148 Pac. 585. In each of these cases it is

A railroad company owes no duty to li

censees using its right of way as a pathway to held that:

run its trains traveling in one direction on one A "purchaser may rely upon the representa of its double tracks and trains in the opposite ditions of a vendor where the property is at a rection on the other track, though customarily distance, or where for any other reason the fal- so operated, since, under both its duty to the sity of the representations is not readily ascer- public and its rights as owner of the right of tainable."

way, it may run its trains in any direction on

either track as it may see fit. The facts of the case at bar bring it within] [Ed. Note. For other cases, see Railroads, the rule of the later cases rather than the Cent. Dig. $9 1236, 1237; Dec. Dig. 359.) earlier ones. The contract for the exchange 3. RAILROADS 365 – Right OF WAY IN of the property was made at Spokane, in this CITIES–LICENSEES--DUTY. state. The land in Montana was several hun

The duty of railroads to persons crossing

its right of way for a pathway in cities and dred miles distant. It was known that the

towns, where the population is congested, and appellant had never seen it, but was relying the public have been accustomed to use the upon the statements concerning it made by tracks, is higher than in sparsely settled country Chambers. Chambers therefore spoke at his

at his districts. peril. He should have told the truth or re

[Ed. Note.-For other cases, see Railroads, mained silent.

Cent. Dig. $$ 1254–1256; Dec. Dig. 365.]

4. RAILROADS 358-CROSSINGS-DUTY. [2] The respondents also rely much upon

The duty of a railroad to persons crossing the fact that warning was given the appel-lits tracks at points established by the company lant not to make the exchange without first or by an implied license under long user by the examining the land he was to receive. This public is that of strict accountability, since it is

necessary for men and traffic to cross railway warning came through an attorney with

tracks in the pursuit of their legitimate underwhom the appellant consulted with reference takings and conveniences by reason whereof a to a minor matter concerning the exchange. legal right to so cross arises. But the fact that the appellant did not heed [Ed. Note. For other cases, see Railroads. the warning cannot, it seems to us, aid the

Cent. Dig. $8 1236, 1237; Dec. Dig. 358.) respondents. To us it only evidences the fact ".

of 5. RAILROADS 377 – LICENSEES WALKING

ON RIGHT OF WAY-ANTICIPATING PERIL. that he had been completely deceived by the In an action to recover for the death respondents; he was led to believe that he licensee walking on a right of way of defendant . was in the hands of Samaritans, whereas he railroad, where it did not appear that decedent had fallen among the Philistines.

was on the track, the fact that the engineer had

an unobstructed view for more than a mile does The judgment is reversed, and the cause not establish negligence in failing to discover de remanded, with instructions to direct a re-cedent's peril, since the engineer was not bound conveyance from the respondent Honefenger

to anticipate that a man walking along the right

of way would step in front of the train. to the appellant of the lands in Walla Walla

(Ed. Note.-For other cases, see Railroads, county, together with a reassignment of the

Cent. Dig. § 1280; Dec. Dig. Om377.] contract mentioned, on the appellant's paying into court for the use of the respondents

Department 1. Appeal from Superior the sum of $530 and depositing therein a re

Court, Thurston County; C. E. Claypool, conveyance to Chambers of the land in Mon

Judge. . tana. As a condition precedent to a reconvey.

Action by Daisy D. Imler and others against ance the appellant must also pay into court

the Northern Pacific Railway Company and the obligation assumed by Chambers, should

others to recover for death by wrongful act. it be established that Chambers has complied

Judgment for defendants, and plaintiffs apwith his agreement by paying the debt.

peal. Affirmed.

Hugo Metzler, of Tacoma, Ben S. Sawyer, MORRIS, C. J., and MAIN and ELLIS, JJ.,) of Seattle, and Gordon & Easterday, of Ta. concur.

coma, for appellants. J. W. Quick, George

| T. Reid, and L. B. 'Da Ponte, all of Tacoma, (89 Wash. 527)

for respondents. IMLER et al. v. NORTHERN PAC. RY. CO. et al. (No. 13134.)

CHADWICK, J. [1] Joseph Imler, while

walking along the track of the defendant (Supreme Court of Washington. Feb. 7, 1916.) | railway company on the evening of the 4th 1. RAILROADS 369-LICENSEE WALKING ON of November, 1912, was struck and killed by TRACK-COMPANY's Duty.

one of defendant's work trains. The place Where plaintiff's decedent was walking on of the accident was between the stations of defendant railroad's right of way where a license had been established by customary and

Centralia and Bucoda, where the company frequent use, it was defendant's duty to keep a maintains a double track railway which is reasonable lookout in anticipation of the pres- fenced and guarded at all proper places with ence of such licensees on the right of way and

cattle guards. Imler had been at work during to use reasonable care to avoid injury after dis- í covering decedent's presence thereon.

the day at a farm about a mile and a half [Ed. Note.-For other cases, see Railroads, south of Bucoda, where he lived. He left the Cent. Dig. $$ 1259–1262; Dec. Dig. Om369.] 'T place of his employment about dusk, and fol

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